Telecommunications – Electronic Communications Code – Interim Code rights – Claimant seeking to make multi-skilled non-intrusive inspection of respondent’s site – Respondent requiring right to reject the claimant’s risk assessment and method statement (RAMS) – Whether respondent having potential criminal liability under Health and Safety at Work Act 1974 – Whether respondent having final say over approval of RAMS to satisfy health and safety concerns – Terms determined accordingly
The respondent owned Tradescant House, an 11-storey residential block in the London Borough of Hackney. Access to the roof was through the common parts of the block, then through the water tank room and the lift motor room, and then by ladder to the roof itself. Hazards included smashed ceiling lights with jagged glass and the risk of head injury because of a low ceiling, rubbish in the water tank room, trip hazards, unprotected raised skylights on the roof and litter on the roof.
The claimant was an infrastructure provider which applied for interim rights under schedule 3A to the Communications Act 2003 (the Electronic Communications Code) to carry out a multi-skilled visit (MSV) to inspect the rooftop in order to find out whether it was suitable for the installation of electronic communications equipment. The inspection visit would take place on a single day and was primarily a visual inspection that would not intrude upon the fabric of the building.
The respondent did not object to the claimant having those interim rights but resisted some of the terms that the claimant sought to have imposed upon it. The principal bone of contention was whether the terms of the agreement would permit the respondent, as site provider, to have the last word on the approval of the essential risk assessment and method statement (RAMS). The respondent was, at all material times, the occupier of the premises and argued that, as it had duties under sections 3 and 4 of the Health and Safety at Work Act 1974, it should have the final approval of the RAMS.
Held: The terms were determined accordingly.
(1) Interim Code rights were designed to enable an operator to get onto land quickly pending the resolution of all the terms of the Code agreement, but they could also be conferred in the absence of an application under paragraph 20. Therefore, they were often sought, as here, as the basis for the operator to carry out the investigation that was needed before deciding whether or not to seek the right to place equipment on the site.
Prior to the visit the claimant would complete a risk assessment and a method statement (RAMS) for the visit. The respondent sought a term that provided for it to see each iteration of the RAMS and to refuse access until it had approved the RAMS.
Both parties regarded it as important to have the last word on the RAMS. For the claimant, the central issue was control of its own operations. The respondent was concerned about the safety of the site for its residents, visitors and employees, and very anxious about the potential for criminal liability under the 1974 Act.
(2) The respondent’s duties under sections 3 and 4 of the 1974 Act were to take all reasonably practicable steps to eliminate or minimise risk to its employees and visitors. In On Tower UK Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152 (LC); [2022] PLSCS 133 (Audley House), it was agreed that the site provider would grant exclusive possession of three sites to the claimant. The sites were held not to be part of its undertaking, so that no liability for what went on there could arise under section 4 of the 1974 Act. Furthermore, the agreement imposed by the tribunal gave the site provider no control over what the operator did on the access to the sites and therefore it could not be liable for risks created there by the operator.
The situation in the present reference was very different. What went on on the roof of the property was part of the respondent’s undertaking as a landlord, and it retained full control of the access to the roof. It was, of course, liable for unsafe practice that it could prevent.
The respondent could not be civilly or criminally liable for allowing contractors on to the site without having given final approval to the RAMS in a case where the terms imposed by the tribunal prevented it from doing so. If the tribunal refused to impose the approval condition, so that the respondent had the right to comment on the first version of the RAMS but the claimant then had the last word, that would not in itself make the respondent criminally liable under the 1974 Act.
(3) Nevertheless, the approval condition would be imposed because it was appropriate to do so where, in sharp contrast to the position in Audley House, the respondent was in a much better position to assess the risks on the site than was the claimant: see paragraph 23(1) of the Code.
This was an MSV. The claimant’s assessor had not been on the site before. In writing the RAMS, it was dependent upon the respondent to make it aware of site-specific risks, and the respondent was better placed than the claimant or its agent to assess whether the RAMS took appropriate steps to meet those risks. It was clearly important that telecommunications operators be in control of their own undertaking, and the claimant was better placed than the respondent to assess the risks arising from work that involved electronic communications apparatus. But here the claimant was simply walking onto the site to look and take photographs, and carry out an asbestos survey. No risks specific to the claimant’s undertaking would be created. Further, in the unlikely event that there was a real disagreement about safety, an MSV agreement with the approval condition was likely to cause less loss and damage to the respondent than the same agreement without that condition.
(4) Paragraph 23(5) of the Code required that the tribunal should impose the approval condition upon the parties. The approval condition was qualified by the requirement that approval was not to be unreasonably withheld. If the respondent were to use the approval condition as a way of preventing the MSV from taking place for reasons other than safety, then the claimant would be able to enforce the terms of the agreement on the basis that approval was being unreasonably withheld.
Harriet Holmes (instructed by Osborne Clarke LLP) appeared for the claimant; David Holland QC and Harry Vann (instructed by Freeths LLP) appeared for the respondent.
Eileen O’Grady, barrister
